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Can I Refuse a Blood or Breath Test?

Posted By Jerry Loftin & Associates || 14-Mar-2017

You are required under Texas state law to take a blood or breath test if
you are arrested for DWI. This often confuses people who remember that
they are allowed to refuse to take
a test for drunkenness, but forget which one. You are allowed to refuse to
take a field sobriety test without consequence, but thanks to Texas’s
“implied consent” law, you cannot refuse to take a blood or
breath test to determine your blood alcohol content.

Implied consent simply means that by obtaining a driver’s license,
you give officers permission to conduct a blood or breath test if you
are arrested on suspicion of driving while intoxicated. You are not required
to take any blood alcohol content tests until you are placed under arrest,
but going along with field sobriety tests may help prove to the officer
that you are not intoxicated beyond your limits.

When you are arrested, your arresting officer should both tell you and
give you notice in writing that if you refuse to take the test, your license
will automatically be suspended for at least 180 days. They should also
inform you that if you fail your breath or blood test, then your license
will automatically be suspended for at least 90 days. They should do both
of these things before then asking you to take a breath or blood test.
Generally, an officer cannot force you to take a blood or breath test,
but there is one instance in which you are not allowed to refuse: when
you are involved in an accident in which someone else was seriously injured
or killed.

What Happens When I Refuse to Take a BAC Test?

If you do refuse to take the test, your arresting officer will take your
license and instead give you a temporary permit that is valid for 41 days.
This period is important because you must schedule your DWI hearing within
the first 15 days in order to have a chance to defend yourself in court
and possibly have your license suspension reversed. If you do not request
a hearing or you fail to prove that you were not driving while intoxicated,
then your license suspension will remain for the entire 90 or 180 day period.

It’s also important to note that the 180-day automatic suspension
only applies to first-time offenders. For your second time refusing to
take a blood test, your license will automatically be suspended for two
years. The same penalty will be given for a third offense, or any offense
in which you are found to be driving while intoxicated with a child riding
in the car as a passenger.

Should You Refuse to Take a Test?

Some people think that refusing to take the blood alcohol test helps them
improve their chances of a successful outcome in their case, but this
is largely false. Even though your prosecutor may not have hard evidence
of your intoxication, they can often use your refusal against you, saying
that you refused to take the test because you were aware of your own intoxication.
This is an accepted argument in court, so it may not even really help
you at all. While a first-time DWI will require you to spend three days
in jail (six if you had an open container in your car), which is more
severe than a 180 day suspension, it’s often not worth refusing
to take the test.

If you have been arrested and charged with DWI, you should not hesitate
to contact a skilled Fort Worth DWI attorney for help with your case. At
Jerry Loftin & Associates, we know the severity of the consequences you are facing when you contact
us regarding a DWI charge, and we work tirelessly to help you prepare
and then best plead your case during your DUI hearing.